Kerala High Court
Food Inspector vs K.P. Alavikutty on 11 February, 1987
Equivalent citations: 1987CRILJ1298
ORDER S. Padmanabhan, J.
1. On 20-2-1984 I he Food Inspector, Tirur, went to the shop of the accused for taking action under the Prevention of Food Adulteration Act. The shop was found open and the accused was there. Among other food articles exposed for sale there was rice flour also. The Food Inspector demanded sale of sample from the rice flour. The accused refused on the ground that it was a holiday for the shop and the shop was opened only for some other purpose. Using his power the Food Inspector took sample of the rice flour. Accused refused to co-operate with him and refused:
(1) to accept Form 6 notice;
(2) to accept price of the sample;
(3) to issue receipt;
(4) to put his signature in the sample; and (5) lo sign the mahazar.
After observing the formalities one sample was sent for analysis. The report was that the sample is not adulterated. Therefore the Food Inspector filed a complaint before the Judicial I Class Magistrate, Tirur against the accused for having committed offences punishable under Section 16(l)(c)and (d) of the Prevention of Food Adulteration Act for having prevented him from taking the sample as authorised by the Act and for having prevented him from exercising his powers under the Act.
2. Learned I Class Magistrate took cognizance of the offence. After considering the allegation in the complaint he was of opinion that there was sufficient ground for proceeding. Therefore he issued process to the accused. Pursuant to the process the accused appeared. Particulars of the offence was stated to him and he pleaded not guilty. On his application he was released on bail. Thereafter the case was posted for trial.
3. While so, by reorganization of the jurisdiction of courts the Judicial I Class Magistrate's Court, Tirur ceased to have jurisdiction over the area and the jurisdiction vested with the Judicial I Class Magistrate, Malappuram. In exercise of the powers under Section 410 of the Cr. P.C. the Chief Judicial Magistrate, Manjeri transferred the case to the file of the Judicial I Class Magistrate, Malappuram. The Judicial I Class Magistrate, Malappuram refused to take the case to file and disposed of the same by the following order :
I perused the case records meticulously. The allegation against the accused is that he prevented the Food Inspector from taking sample and from using the power conferred upon him under the P.F.A. Act. This is a false allegation. Even from para 1 of the complaint it can be seen that the accused sold food to the Food Inspector as demanded by him. The sample was taken as per the provisions of law and it was got analysed by the Public Analyst. When the sample was found not adulterated, the Food Inspector has turned to the court with this vexatious complaint only to harass the accused. The non-receipt of the price of the sample or the refusal to sign on the records of the Food Inspector will not amount to prevention. Nowhere in the P.F.A. Act or rules it is provided that the manager or agent of a shop is bound to receive money from the Food Inspector or to sign his records. In this case there is no prevention from the side of the accused as alleged by the complainant and hence no offence. In view of the above cognizance cannot be taken against the accused on this complaint. Hence this need not be filed.
This is the order passed by the Magistrate on 19-2-1985.
4. When this illegality came to the notice of the Chief Judicial Magistrate, the I Class Magistrate was asked why he did so. He said that under the provisions of Section 326(3) of the Cr. P.C. he is entitled to treat the complaint as a new one filed before him and that on examination of the complaint he came to know that no offence is disclosed. The Chief Judicial Magistrate has written to this Court. That is how this Criminal Revision Case was taken up and it came up before me. I heard the counsel for the accused as well as the Public Prosecutor.
5. The general principle of law is that only a person who heard the evidence in a case is competent to decide whether the accused is guilty or innocent. Section 326 of the new Code introduced an exception to this rule purely for administrative convenience obviously intended to meet the contingency of transfers of Magistrates from one place to another and prevent the necessity of all part-heard cases being tried de novo at the time of such transfer. Section 326(1) only says that evidence heard and recorded by the predecessor in part or in full may be acted upon by the successor who is having the option to decide whether any witness should be recalled and examined. That sub-section has nothing to do with the stage prior to the examination of witnesses. Only that provision could be held to be inapplicable in summary trials or cases coming under Section 322 or 325 by the operation of Section 326(3).
6. This is not a case coming under Section 322 or 325 of the Code. Simply on the ground that this is a summary trial case to which provisions of Section 326 are made inapplicable by Sub-section (3) thereof, the Magistrate went under the impression that a de novo trial is necessary. By de novo trial what the Magistrate understood was going back to the pre-cognizance stage when the complaint was filed in court as if it was a new complaint filed before him. According to him, when the case was made over to him he could ignore everything that transpired in the case including the cognizance taken by his predecessor, the process issued under Section 204 on the satisfaction that there is sufficient ground for proceeding and the statement of the particulars of the offence and the plea of not guilty recorded under Section 251. He thought that it is his right and duty to decide afresh whether cognizance has to be taken and process issued. He also thought that it was within his power to consider whether the particulars of the offence will have to be stated to the accused and his plea recorded again. Since the Magistrate found that no offence is made out he thought of refusing to take the case to file. For various reasons the action of the Magistrate is wrong, illegal and without authority.
7. The Magistrate used strong words depricating the action of the Food Inspector as mala fide. He went under the impression that no offence is made out. This view also does not appear to be correct. Under Section 16(l)(c) and (d) of the Prevention of Food Adulteration Act prevention of Food Inspector from taking sample as authorised by the Act and preventing him from exercising any other powers are made offences. Section 16(1)(a)(i) gives the Food Inspector power to take samples of articles of food from any person selling such article. Section 10(2) gives him the power to enter any place where the article of food is exposed for sale. Sub-section (4) of Section 10authorises him to seize adulterated food. He has also the power to break open the door or any package in which the article of food is kept. He can also exercise the powers of a police officer under the Criminal Procedure Code in the matter of search and seizure for those purposes and also the power to arrest the offender if he refuses to tell his name and residence. Section 11 provides the procedure to be followed by him. He can follow either the procedure of purchasing the sample or taking the same depending upon whether the vendor co-operates or refuses to co-operate. The reasons for these wide powers and making prevention an offence are patent.
8. 'Prevent'or 'prevention' is not defined in the Act or Rules. The Magistrate seems to have gone under the impression that physical prevention from purchasing or taking the sample is necessary and that there will be no offence if the Food Inspector was successful in taking the sample in spite of the acts or omissions of the accused. That view is not correct. In order to constitute prevention there need not be any overt act on the pan of the seller apart from mere refusal to sell the article of food to the Food Inspector. In Municipal Board v. Jhamman Lai and Mamchand v. State of U.P. 1971 Cri LJ 1772 (All) the law laid down was that mere disappearance or slipping away of the seller from the shop when the Food Inspector demanded the sample disclosing his identity and purpose by itself will amount to prevention. A different note was struck in Jagannath v. State of M.P. 1977 Cri U 974 (Madh Pra) which held that when the accused bolted away, the Food Inspector was free to take the sample and therefore there was no prevention. Narain Prasad v. State also took almost the same view and held that apart from mere refusal some overt act on the part of the seller is necessary. But a contrary view was taken in Habeebkhan v. State of Madhya Pradesh 1971 MPU 883. Rajinder Pershad v. State of Haryana : considered all these decisions and approved the view that mere slipping away by the seller when the Food Inspector demands sample, under the guise of passing urine without accepting the notice and cash will amount to prevention even though in spite of the action the Food Inspector was able to take the sample.
9. Sample has to be purchased or taken according to the provisions of the Act and Rules and certain formalities are required for that purpose. When the seller disappears the Rood Inspector will find it difficult to observe these formalities for which the co-operation of the seller is required. For example, without the co-operation of the seller issuance of Form VI notice, payment of price, obtaining receipt for that purpose, obtaining necessary signatures of the seller and getting his name and address etc. will become impossible and thereby the Food Inspector cannot get the sample as required under the Act and Rules. He may have to undergo difficulties in this respect. If the seller bolts away or refuses to sell the sample and co-operate with the Food Inspector in his action, additional burdens Will be cast on the Food Inspector. Those burdens will include proof of identity of the seller and the fact that the article left was in his possession. In order to constitute prevention not only no overt act apart from mere slipping away, refusal or non-cooperation is necessary, but it is also not necessary that prevention was successful. Difficulties caused to the Food Inspector by any conscious acts or omissions in discharging his functions or exercising his powers will be sufficient to constitute prevention.
10. Use of force or show of force is not necessary. Threat also will amount to prevention. He need not be physically obstructed. Creating a row or conduct and demeanour amounting to prevention will also be sufficient. Some positive or negative volitional act or omission on the part of the accused so as to hinder the Food Inspector from getting the sample will be sufficient. Throwing away, destroying or otherwise making the sample non-available will be sufficient. herefore it is difficult to support the opinion of the Magistrate that the allegations in the complaint do not constitute an offence and that the complaint is false. This is the first illegality.
11. This is not a case of the Chief Judicial Magistrate or any other superior Magistrate taking cognizance and making over the case for inquiry or trial under Section 192. Examination of the complainant on oath and witnesses, if any, present under Section 200 does not arise since this is a complaint in writing filed by a public servant in the discharge of his official duties. But taking cognizance under Section 190 and the post-cognizance stage procedures such as dismissal of the complaint under Section 203 on the ground that there is no ground for proceeding and issuance of process under Section 204 on forming the opinion that there is sufficient ground for proceeding are applicable here also. A transfer under Section 410, Cr. P.C. unlike Section 192 could be at any stage. If the transfer is at the stage of inquiry, the transferee can proceed from the stage at which the case stands. If cognizance was already taken there is no question of taking cognizance a second time. If the stage of inquiry is over and trial commenced, the transferee can, in spite of Section 326(3), start only from the beginning of trial at the maximum.
12. If in such a case process was issued under Section 204 by the predecessor on satisfaction that there is sufficient ground for proceeding, the transferee Magistrate is bound by it. So also he cannot question the cognizance taken by the predecessor and consider afresh whether cognizance has to be taken or not. There is no question of fresh cognizance whenever there is a transfer. Cognizance could be taken only once and it binds the transferee. At every stage of a criminal proceeding there is finality to actions so far as that court is concerned. Order or decisions cannot be altered, reviewed or modified except as provided under law. Transferee or successor of a Magistrate has only the same powers as his transferor or predecessor. When cognizance is taken and process issued by the transferor or the predecessor, the transferee or successor has no other option but to proceed under Section 254 if the accused pleads not guilty. If particulars of the offence was read over and the plea recorded under Section 251 of the Code, the transferee or the successor is bound by that also. He need not again state the particulars of the offence and record the plea of the accused. But there may not be any illegality in the transferee Magistrate stating the particulars of the offence over again and recording the plea because trial starts only from the stage at which charge or particulars of the offence are read over and plea recorded in cases where that is necessary for starting trial. But when once the transferor has issued process the transferee has no right to say, irrespective of his personal conviction, that there is no ground for proceeding and therefore particulars of the offence will not be stated and plea recorded. He cannot sit in judgment over the actions of his predecessor and go back to a prior stage.
13. In this connection it has to be remembered that the Magistrate is not bound to assign any reason when he decides to proceed with the case on the ground that there is sufficient ground for proceedings. The mere fact of issuing process will be indicative of his intention to proceed with the case on the basis that there is sufficient ground to do so. Reasons need be recorded only when the Magistrate dismisses the complaint under Section 203 on the ground that there is no sufficient ground for proceeding. That question does not arise when process was issued to the accused under Section 204 of the Cr. P.C. In such a case it is idle for the transferee or successor Magistrate to have the vanity feeling that he can question the satisfaction of his predecessor. Even if the transferee is a superior Magistrate, he cannot have that prerogative. Such an assumption of power on the part of the transferee or the successor will have the effect of unsettling all the norms of criminal trial and the position in such a case will be that what the predecessor could not have done could be done by the transferee or successor. That is not the position of law.
14. Section 326(1) or (3) does not contemplate a contingency of going back from the stage of trial to the stage of enquiry. Therefore the exclusion of the provisions of Section 326 in the case of summary trial cases is not having the effect of the transferee Magistrate getting the authority of going back from the stage of trial to the stage of enquiry or from the post-cognizance stage to the pre-cognizance stage. The maximum that could be said is that if the case is at the trial stage, the transferee can start trial afresh from the beginning of that stage and nothing more.
15. learned Counsel for the accused brought to my notice certain decisions. One of them is Pramatha Nath v. Saroj Ranjan . That decision is not helpful for our purpose because what is decided there is only that sufficient ground for proceeding under Section 204, Cr. P.C. cannot be equated with sufficient ground for conviction. Gopal Das v. State of Assam AIR 1961 SC 986 : 1961 (2) Cri LJ 39 is a case in which a transfer under Section 192 of the Code was considered. It was held therein that when the transferor had already taken cognizance, the transferee Magistrate cannot once again take cognizance of the offence. Dalu Gour v. Moheswar Mahato AIR 1948 Pat 25 : 1947 (48) Cri LJ 347 is authority for the position that when a transfer of a case is made at a stage when the transferor has decided to proceed with the case, the right of the transferee Magistrate is only to issue process under Section 204 of the Code and not to go back from that stage. When a case pending trial is transferred at a time when it is only part-heard or even when the trial is complete, the maximum that the transferee Magistrate is entitled to do is to examine witnesses over again from the beginning and nothing more than that.
16. In a summons case and a summary trial case the procedure for trial is the same. In cases where the accused pleads guilty the Magistrate can either act on the plea of the accused and convict him or proceed to go ahead with the trial of the case. In cases where the accused pleads not guilty the Magistrate will have to adopt the procedure under Section 254. He will have to take all such evidence that may be produced in support of the prosecution and also hear the accused and take all such evidence as he produces for his defence. The question of conviction or acquittal under Section 255 arises only thereafter. There is no intermediate stage in such a trial. The contingency contemplated under Section 256 of the Code has not arisen in this case. During the trial of a summary trial or summons case there is no question of the Magistrate dismissing the complaint or discharging the accused on the ground that no offence is made out by the complainant because the trial commences only after that stage is over. In a summons case or summary trial case there is no question of discharging the accused at the stage of starting the trial without stating the particulars of offence on the ground that there is no ground for proceeding after hearing the prosecution and the defence and considering the records as in the case of trial under Section 227 or in the case of warrant cases on police reports as envisaged under Section 239 of the Code.
17. learned Counsel for the accused brought to my notice the decision in Mathew Paily v. Prabhakaran 1980 Ker LT 926 to support his argument that even in a summary trial case at any stage the Magistrate could discharge the accused on satisfaction that the accusations are groundless. That was a case in which the procedure for the trial of a warrant case instituted otherwise than on a police report was being considered. In such a case under the provisions of Section 245(1), if after taking all the evidence (produced by the prosecution to Magistrate considers that no case is made out, which if unrebutted would warrant a conviction he can discharge the accused. That decision only said that even without taking the entire prosecution evidence it is open to the Magistrate to discharge the accused as provided under Section 245(2) at any previous stage if he is satisfied that the charge is groundless and no useful; purpose is going to be served by allowing further evidence to be adduced. In the chapter regarding trial of summons cases there is -no such provision corresponding to Section 245(2) and the contingency contemplated in Section 256 has not occurred. So also trial has not started by examination of witnesses and therefore there is no question of there being any material on which the Magistrate could find the allegation groundless. Were the Magistrate had already considered the complaint and found that there are sufficient grounds for proceeding. Process was issued. After issuing process and before recording evidence there is no stage in a summons trial at which the Magistrate is entitled to come to the conclusion over again that there is no ground for proceeding against the accused and he has to be discharged. That stage will arise only when the evidence is recorded and satisfaction is arrived at on the basis of such evidence. Such a stage has not arisen.
18. There cannot be two opinions on the question that the learned Magistrate was assuming powers which he did not have. If it is not ignorance, it cannot be anything less than vanity. By his action the Magistrate has refused to exercise the jurisdiction vested in him to try a case and bring the offender to justice and he also willingly flouted the order of the Chief Judicial Magistrate under Section 410 transferring the case to him for trial. The illegality committed by the Magistrate has to be rectified in the interest of justice. Otherwise miscarriage of justice will follow and bringing an offender to justice will become impossible.
Therefore the order of the Judicial I Class Magistrate is set aside and he is directed to take the case back to his file and proceed to dispose of the same on the merits according to law and in the light of what is stated above.